Return to Work Corporation of South Australia v Wastell

[2024] SASCA 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v WASTELL

[2024] SASCA 98

Judgment of the Court of Appeal  

(The Honourable Acting Chief Justice Livesey, the Honourable Justice Bleby and the Honourable Justice David)

8 August 2024

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - EVIDENCE

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - GENERALLY

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - APPEALS TO SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL AND ITS PREDECESSORS - POWERS AND PROCEDURE ON APPEAL

Appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal (‘SAET’).

On 12 October 2018, the respondent was injured in a motor vehicle accident travelling from her home to her place of employment at Christies Beach. She was a solicitor for the Women’s Legal Service SA (‘WLSSA’). Her base office was located at Christie’s Beach.

The respondent made a claim for worker’s compensation in respect of injuries she sustained in the accident. The trial judge rejected the claim, finding that in consideration of all the circumstances of the journey it did not satisfy s 7(8)(a) of the Return to Work Act 2014 (SA) (‘RTW Act’).

The trial judge’s findings of fact included that the worker had been directed to attend at the Adelaide Office for file reviews on 11 October 2018. The worker had taken files from the Christies Beach office the previous day for this purpose. On 11 October 2018 while at the Adelaide office, the worker was also asked to collect items comprising of two boxes and take them to the Christies Beach office the next day. Thus on 12 October 2018, when driving from home to work at Christies Beach when the accident occurred, she was carrying both the files and the boxes of equipment.

The trial judge found that the worker’s injuries did not arise from employment within the meaning of s 7 of the RTWA. In the dispositive part of his reasons characterising whether the worker was carrying out her duties of employment at the time of her journey from her home to the WLSSA office, he did not specifically refer to her transporting the files.

The worker appealed to the Full Bench of the SAET who unanimously allowed the appeal. However, this was not on the basis of any ground specifically raised in the worker’s Notice of Appeal. The critical factor underpinning the decision was the evidence relating to the transportation of the files. All members of the Full Bench considered that the primary judge had not adequately addressed that evidence in the dispositive part of his reasons, this amounting to a failure to explain the significance or otherwise of a key element of the worker’s case.

Calligeros DPJ considered that the error of law on the part of the trial judge was a failure to refer to and consider relevant facts. He held that it was necessary to remit the application for review to the trial judge for rehearing at large. Crawley DPJ and Eaton DP considered that the conclusion that the worker’s journey was undertaken in the course of carrying out the duties of her employment required no additional finding of fact. The majority of the Full Bench therefore ordered that the worker’s claim be accepted.

An appeal to this Court is limited to a question of law pursuant to s 68 of the South Australian Tribunal Act 2014 (SA). The appellant did not squarely raise a precise question of law in the Notice of Appeal. Broadly, the complaints raised on appeal were that the appellant was denied procedural fairness and that the Full Bench exceeded their jurisdiction by impermissibly making factual findings.

Held (by the Court), granting leave to appeal on all grounds, allowing the appeal on ground 3.1 and dismissing the Notice of Alternative Contention:

1.Having regard to the scope of the Notice of Appeal and the conduct of the appeal hearing before the Full Bench, it was open as a matter of procedural fairness for the Full Bench to decide the appeal on the basis of the putative error that the trial judge had failed to refer to and consider (or give reasons for rejecting) the evidence relating to the file review and the worker’s carriage of the files.

2.It was necessary for the trial judge to address the evidence of the files and the file review and to explain the significance, or otherwise, of that evidence to his conclusion that the worker’s journey was not undertaken in the course of her employment. In failing to do so, the reasons of the trial judge were inadequate. The reasons of the Full Bench adequately identified this error.

3.On the facts as found by the trial judge, it could not be said that the only conclusion reasonably open was that the worker’s journey was undertaken in the course of carrying out her duties of employment within the meaning of s 7(8)(a) of the RTWA. A determination to that effect would require further findings of fact.

4.Given the approach taken by the Full Bench in raising the question of the judge’s treatment of the files case, the only course that would accord substantive justice to both the worker and RTWSA is to remit the matter to the trial judge, insofar as it concerns the ‘files’ case prosecuted by the worker, for further hearing, including evidence, and determination. It would not be appropriate to allow the worker on the remitted hearing an opportunity to adduce further evidence with respect to the ‘boxes’ issue.

Police Regulations 1982 (SA) reg 20; Return to Work Act 2014 (SA) ss 7, 7(8); South Australian Employment Tribunal Act 2014 (SA) ss 32(1)(c), 68; Uniform Civil Rules 2020 (SA) r 218.17(2); Workers Rehabilitation and Compensation Act 1986 (SA) s 30(5), referred to.

Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Henderson v Commissioner of Railways (WA) (1937) 59 CLR 281; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Hutchinson v Piper [1812] EngR 349 ; Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Pateman v Higgin (1957) 97 CLR 521; R v Keyte (2000) 78 SASR 68; R v Mayger (2013) 116 SASR 488; R v Ricciardi (2017) 128 SASR 571; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, discussed.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Boyle (a pseudonym) v The Queen [2022] SASCA 50; Brown v Department for Education [2023] SASCA 138; Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8; Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529; DL v The Queen (2018) 266 CLR 1; Hope v Bathurst City Council (1980) 144 CLR 1; Hunter v Transport Accident Commission and Avalanche [2005] VSCA 1; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133; McNamara v The Queen [2021] SASCFC 2; Pateman v Higgin (1957) 97 CLR 521; Schinckel v Return to Work Corporation of South Australia [2023] SASCA 32; State of South Australia v Brophy (1997) 68 SASR 97; Suttor v Gundowda (1950) 81 CLR 418; TransAdelaide v Karanicos [1996] SASC 5536; Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260; Wastell v RTWSA [2023] SAET 4; Wastell v RTWSA [2023] SAET 69; Wheeler v South Australia (2012) 114 SASR 111, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v WASTELL
[2024] SASCA 98

Court of Appeal – Civil:  Livesey A/CJ, Bleby and David JJA

1. THE COURT:   This is an application by Return to Work South Australia (‘RTWSA’) for permission to appeal on questions of law from a decision of the Full Bench of the South Australian Employment Tribunal. The underlying issue in the litigation is whether an injury sustained by the worker arose from employment within the meaning of s 7 of the Return to Work Act 2014 (SA) (the ‘RTWA’). The injury occurred in the course of a journey from the worker’s residence to her place of work.

2. Section 7(8) of the RTWA provides:

   (8)An injury that arises out of or in the course of a journey arises from employment if (and only if)—

   (a)     the journey is undertaken in the course of carrying out duties of employment; or

   (b)the journey is between—

   (i)    the worker's place of residence and place of employment; or

   (ii)     the worker's place of residence or place of employment and—

   (A)an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or

   (B)a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a compensable injury,

   and there is a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises.

3. The worker’s case was that the journey during which the accident occurred was undertaken in the course of her carrying out duties of employment, within the meaning of s 7(8)(a). The trial judge rejected the worker’s claim. The Full Bench unanimously allowed the worker’s appeal and, by majority, substituted a finding that the journey in question was undertaken in the course of carrying out the duties of employment, within the meaning of s 7(8)(a).

4. RTWSA challenges that conclusion of the Full Bench. However, the grounds of appeal and the Notice of Alternative Contention raise several further issues that have added complexity to this matter. Broadly speaking, RTWSA’s additional complaints on appeal are that:

   ·the Full Bench failed to accord it procedural fairness in finding, contrary to the trial judge’s conclusion, that the worker’s injury arose from employment;

   ·the Full Bench failed to provide adequate reasons for its conclusion;

   ·the Full Bench wrongly found that the trial judge had constructively failed to exercise his jurisdiction;

   ·the Full Bench wrongly held that a failure by the trial judge to refer to relevant evidence constituted an error of law; and

   ·a majority of the Full Bench exceeded its jurisdiction by impermissibly making factual findings when the appeal was limited to ‘dealing with errors of law’.

5. Section 68 of the South Australian Employment Tribunal Act 2014 (SA) (‘SAET Act’) limits an appeal to this Court under the RTWA to a question of law. Notwithstanding this Court’s repeated emphasis of the need to identify the question of law the subject of the appeal,[1] RTWSA has not done so. It is insufficient simply to complain in a notice of appeal that a decision-maker ‘erred in law’ in some respect.  That does not identify a question of law. In the 2012 case of Wheeler v South Australia,[2] the Full Court considered a proposed ground of appeal that read:[3]

   The learned Trial Judge erred in law in that in finding that the worker’s disability occurred in the course of the journey, he failed to apply or failed to correctly apply Section 30(2) of the Worker’s Rehabilitation and Compensation Act.

   [1]     Brown v Department for Education [2023] SASCA 138 at [3]; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [18]-[43].

   [2] (2012) 114 SASR 111.

   [3]     Wheeler v South Australia (2012) 114 SASR 111 at [41].

6. White J, with whom Sulan and Nicholson JJ agreed, said of this formulation:[4]

   In my respectful opinion, a ground of appeal in these terms contains some shortcomings. As noted earlier, s 86(1) of the WRC Act provides that an appeal lies to the Full Bench against a decision of a single presidential member on a question of law only. The appellate jurisdiction of the Full Bench of the Tribunal is accordingly limited to appeals of that kind. That being so, it is appropriate that notices of appeal identify the question of law sought to be agitated on appeal. That is necessary in order to give both the Tribunal and the worker proper notice of the matter to be argued and to allow them to consider whether the appellate jurisdiction of the Full Bench has been properly invoked.

   [4]     Wheeler v South Australia (2012) 114 SASR 111 at [42].

7. The shortcomings in this style of formulation have not dissipated with the passage of time.[5] Where, as here, a question of law the subject of appeal requires leave, it is all the more important that it be formulated with precision so that this Court can assess whether to grant leave.

   [5]     Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [18]-[43].

8. It will be necessary to identify, in the course of considering RTWSA’s complaints, the questions of law raised by the Notice of Appeal.

   The trial judge’s findings

9. The essential facts can be stated simply, although there were degrees of nuance and ambiguity in the evidence that require exploration in the determination of the application and the appeal. It is helpful to start with the facts found by the trial judge.[6]

   [6]     Wastell v RTWSA [2023] SAET 4.

10. The worker was a qualified legal practitioner. At the relevant time, she was employed as a solicitor for the Women’s Legal Service SA (‘WLSSA’). WLSSA had offices in Adelaide and Christies Beach. The worker was primarily based at the Christies Beach office. The trial judge found that her duties involved court work and visiting safety houses, community centres and schools. She was required to attend the Adelaide office for meetings and mentoring and did so ‘perhaps once a month’. Her evidence was, and the trial judge appears to have accepted, that having a car was a requirement of the job.[7]

    [7]     Wastell v RTWSA [2023] SAET 4 at [3].

11. It is necessary to set out the judge’s essential findings of fact precisely, given the approach by the Full Bench to what was said not to have been decided:[8]

    On 11 October 2018, Ms Wastell was directed to attend at the Adelaide office for meetings and file reviews. In connection with this she had taken files from the Christies Beach office, which she had transported home the previous day.

    From time to time when she travelled from one office to the other, Ms Wastell would transport items connected with her employment. On 11 October 2018 she was asked to collect items from the Adelaide office to take to the Christies Beach office the next day. These comprised of [sic] two boxes containing computer equipment and pamphlets. She left the Adelaide office between 5.00 and 6.00 pm in her car. She had with her, her work computer, telephone, files and the two boxes. When she arrived at her home at Blakeview, about 30 kilometres north of Adelaide, she removed all of the WLSSA items from her car and stored them in her kitchen. It can be inferred that WLSSA expected her to store the items securely.

    On the morning of 12 October 2018, Ms Wastell loaded the WLSSA items into her car and at about 7:15 am she set off on her journey to work at the Christies Beach office. It can be inferred that this was her normal time of departure. Whilst travelling on the Southern Expressway at about 8.30 am her car crashed through a safety barrier and struck a pole causing her serious injuries. She has not been able to return to work since.

    [8]     Wastell v RTWSA [2023] SAET 4 at [4]-[6].

12. Importantly, these findings included that the worker had been directed to attend at the Adelaide Office for file reviews. She had consequently taken files home with her on 10 October for the review on 11 October 2018. She still had those files at home overnight on 11 October, with a view to taking them back to the Christies Beach office on 12 October. Her possession of the two boxes, on the other hand, was consequent on being asked on 11 October, while she was at the Adelaide office, to take various items to the Christies Beach office the next day. Thus on 12 October, her possession of the files on the one hand, and the boxes on the other, had different provenances.

13. The trial judge characterised the worker’s case as to the application of s 7(8) of the RTWA as follows:[9]

    She submitted that she was carrying out her duties of employment when embarking upon the journey from her home to WLSSA’s office at Christies Beach because, having been asked to transport boxes to that office, she was acting as a de facto courier. She submitted that the fact that she commenced the journey from her home and that it had a dual purpose, that is getting to work and transporting her employer’s goods, did not detract from the fact that she was carrying out duties of employment.

    [9]     Wastell v RTWSA [2023] SAET 4 at [13].

14. The judge here referred to the request to transport boxes and the dual purpose of the journey that included ‘transporting her employer’s goods’. He did not specifically refer to the worker having taken files from the Christies Beach office for the purpose of the file review and the necessary requirement to take them back to Christies Beach on 12 October. However, he had, in his account of the facts, explicitly mentioned the worker having taken the files in contemplation of the file review at the Adelaide office.

15. The judge reviewed, briefly, the legislative project aimed at limiting the circumstances in which journey accidents will be compensable. He then referred to certain observations of Doyle CJ in TransAdelaide v Karanicos[10] with respect to the predecessor section to s 7(8), s 30(5) of the Workers Rehabilitation and Compensation Act 1986 (SA) (‘WRCA’). This was in materially the same terms. The trial judge quoted part of the following passage from Karanicos:[11]

    … it seems to me that the focus of the expression "duties of employment" as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a common sense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context.

    [10] [1996] SASC 5536.

    [11]   TransAdelaide v Karanicos [1996] SASC 5536 at [23] (Doyle CJ, Millhouse and Williams JJ agreeing).

16. The trial judge also referred to State of South Australia v Brophy,[12] drawing from that case the proposition that the fact that an employer might be deriving some benefit from the worker’s journey may not be enough to establish that the worker was carrying out duties of employment.[13]

    [12] (1997) 68 SASR 97.

    [13] [2023] SAET 4 at [28].

17. It will be necessary to return to both Karanicos and Brophy. For present purposes, the trial judge found:[14]

    In this case, WLSSA asked Ms Wastell to transport goods to its Christies Beach Office. She was expected to store the goods securely. Had she not transported the goods WLSSA would have had to make other arrangements which might have involved it engaging a courier. The journey was therefore beneficial to WLSSA.

    On the other hand, Ms Wastell was not being paid when she drove to work on the morning of 12 October 2018. She was driving her own car. There was no evidence to suggest that she was being paid a mileage allowance. The evidence does not support a finding that WLSSA had the right to exercise any control over how she conducted her journey to work. She was not directed to travel by a particular route. She was not asked to drive to the Christies Beach office any earlier than usual. It would have been open to her to have deviated from her usual route. For example, she could have stopped along he way to have a coffee or visit a friend or relative. Apart from the fact that she was providing a benefit to WLSSA by transporting two boxes to WLSSA’s Christies Beach office, her journey to work that morning was the same as any other routine journey that she embarked upon to travel from her home to her workplace at Christies Beach.

    [14]   [2023] SAET 4 at [32]-[33].

1. The judge then concluded:[15]

   Having considered that factual picture as a whole, in my opinion it cannot be said that in undertaking that journey Ms Wastell was in the course of carrying out her duties of employment. The Corporation’s rejection of her claim must therefore be upheld.

   [15] [2023] SAET 4 at [34].

2. The judge did not, in these passages, refer expressly to the transport of the files back to Christies Beach following the file review.

   The appeal to the Full Bench

3. The worker appealed to the Full Bench of the Tribunal. As with the appeal to this Court, that appeal lay on a question of law only. Notwithstanding the specific request to identify the question of law on the Notice of Appeal form, the worker only said:

   1. The learned Deputy President erred as a matter of law in his construction of ss.7(2)(a) and 7(8)(a) of the Return to Work Act 2014.

4. For the reasons discussed above, this did not identify a question of law with any precision. It was merely a broadly expressed ground of complaint. The question of law to which it might give rise would depend on the aspect of construction that was the subject of the complaint.

5. The grounds raised in support of the complaint were expressed as follows:

   1.The learned Deputy President erred as a matter of law in his construction of ss.7(2)(a) and 7(8)(a) of the Return to Work Act2014, and in particular the meaning of the words “the journey is undertaken in the course of carrying out duties of employment”, insofar as His Honour:

   a.     Failed to conclude that, irrespective of any secondary purpose of the journey, in delivering office supplies and paraphernalia to the Christies Beach office, the Appellant had been complying with “an instruction from the employer in the exercise of its control as an employer”, and that such a finding ought, as a matter of proper construction, to have been conclusive and determinative of test under s.7(8)(a) of the Return to Work Act 2014 (TransAdelaide v Karanicos [1996] SASC 5536).

   b. Impermissibly considered the dual purpose of the journey and reasoned that the singular purpose of travelling to work obscured the fact that there remained as at least a secondary purpose, the carrying out of an instruction from the Appellant’s employer, which was sufficient to bring the action within the contemplation of s.7(8)(a) of the Return to Work Act 2014 (Nebl v CGU Workers Comp (DV & DM Stribing) [2000] SAWCT 27)

   c.     Failed to distinguish State of South Australia v Brophy (1997) 68 SASR 97 (where the worker was not carrying out any instruction from his employer, but was instead representing his employer by virtue of his uniform and motorcycle). [para. 25-29]

   2.In interpreting and applying the test under s.7(8)(a) of the Return to Work Act 2014, the learned Deputy erred in law by impermissibly taking into account irrelevant facts, such as whether the Appellant was being paid at the time of the injury. [para. 33]

6. These grounds of appeal did not take any issue with the trial judge’s failure, in the dispositive part of his reasons, to refer to the evidence that the worker had also been transporting files following the file review.

7. Each member of the Full Bench wrote separately. None upheld the complaints as particularised on the Notice of Appeal.[16] However, that was not the end of the matter. Ultimately, each member concluded that the appeal should be allowed, although they differed as to the appropriate disposition of the appeal.

   [16]   Wastell v RTWSA [2023] SAET 69 at [28] (Calligeros DPJ); [66] (Crawley DPJ); [75] (Eaton DP).

8. The foundation of the Full Bench’s decision to allow the appeal lay in the evidence that on 10 October, the worker had taken files from Christies Beach to Adelaide for the file review on 11 October and had them with her when returning to the Christies Beach office on 12 October.

9. Calligeros DPJ observed that the judge referred to the files separately in the factual recitation in the early part of his reasons. However, he noted that the judge did not refer to the files or the suitcase in which they were contained in his summary of the worker’s submission, as observed above.[17] He then went on:[18]

   The findings of fact made in paragraphs [32]-[33] refer to Ms Wastell transporting goods but like paragraph [13] do not mention the suitcase or the files in it. I am not being critical of the Judge but it appears that his Honour understood that Ms Wastell’s case was based upon carrying two boxes of goods and acting as a de‑facto courier rather than having to return the files to the Christies Beach office after a review. Whilst that may have been the case, as the Judge observed, all relevant facts and circumstances must be considered when deciding if s 7(8)(a) has been satisfied.

   [17]   Wastell v RTWSA [2023] SAET 4 at [13] (Gilchrist DPJ); Wastell v RTWSA [2023] SAET 69 at [30] (Calligeros DPJ).

   [18]   Wastell v RTWSA [2023] SAET 69 at [30] (Calligeros DPJ).

10. His Honour noted that the carriage of the files was in evidence. He noted the worker’s evidence as to having regular meetings in Adelaide to conduct file reviews and receive instructions and information. He then said:[19]

    Ms Wastell gave unchallenged evidence that she was required to own and have the use of a car as a term of her employment. While the evidence did not establish that was so she could attend file reviews in the Adelaide Office, the inference was open.

    [19]   Wastell v RTWSA [2023] SAET 69 at [32] (Calligeros DPJ).

11. Calligeros DPJ then turned to a submission by RTWSA that the findings of the trial judge were immune from challenge because the appeal was limited to a question of law. That submission was grounded in the characterisation in Azzopardi v Tasman UEB Industries Ltd of the “third stage” of a determination that there has been error by a Worker’s Compensation judge:[20]

    At the third stage when the law correctly stated is applied to the facts found to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v BathurstCity Council.[21]

    (Footnotes in original)

    [20]   Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at157.

    [21] [1980] HCA 16; (1980) 144 CLR 1 at 10.

12. Calligeros DPJ rejected the submission that the finding of the trial judge at [34], above, was a finding of fact. In this regard, he relied on the reasoning of White J in Wheeler v State of South Australia.[22] This was to the effect that a conclusion that an activity was ‘properly characterised as activity in the course of employment’ was a step in reasoning from findings of fact to an ultimate conclusion that a disability arose out of or in the course of employment. White J said in Wheeler:[23]

    That step involved an amalgam of factual and legal conclusions, the latter comprising Hannon DP’s conclusions about the appellant’s duties and the course of his employment. The Full Bench was not required to treat this step in the reasoning process as a factual finding which it was bound to act on in the determination of the question of law raised on the appeal.

    [22] (2012) 114 SASR 111.

    [23] (2012) 114 SASR 111 at [65].

13. Calligeros DPJ considered that the description of an ‘amalgam of factual and legal conclusions’ fitted the three paragraphs of the trial judge’s reasons,[24] cited above, whereby the judge concluded that ‘it cannot be said that in undertaking that journey Ms Wastell was in the course of carrying out her duties of employment’.[25] Calligeros DPJ said of this exercise:[26]

    In my view, the Judge amalgamated factual and legal conclusions and a question of law arises as a result.

    [24]   [2023] SAET 4 at [32]-[34].

    [25] [2023] SAET 69 at [38].

    [26] [2023] SAET 69 at [38].

14. His Honour did not identify what that question of law was. Drawing on the third stage of the Azzopardi formulation, a question of law could have been formulated to ask:

    Whether, on the facts as fully found by the trial judge, the only conclusion reasonably open was that Ms Wastell’s journey was undertaken in the course of carrying out her duties of employment within the meaning of s 7(8)(a) of the RTWA.

15. If this question were to be answered ‘yes’, the conclusion would follow that the trial judge’s determination was not open as a matter of law, and the appeal would be allowed.

16. Expressing the question of law in this way assists in ensuring that an appeal court with confined jurisdiction does not simply reinterrogate the ‘amalgam of factual and legal conclusions’ as if it were an appeal by way of rehearing. We can only continue to emphasise the importance of stating the question of law arising, rather than simply acknowledging that a question of law exists or reducing the complaint to one of ‘error of law’. The failure to do so carries an inherent risk that the court will exceed its jurisdiction by undertaking some part of the broader, factual inquiry.

17. Calligeros DPJ continued on from the passage quoted above and identified a further foundation for jurisdiction of the Full Bench on the appeal:[27]

    However, even if I am wrong, it does not change the result because the failure to refer to and consider the carriage of files was an error of law.

    [27] [2023] SAET 69 at [38].

18. He explained this on the basis that ‘a failure to refer to or consider relevant evidence is an error of law and a failure to identify such an error is a constructive failure to exercise jurisdiction’.[28] In this regard he cited the decision of the New South Wales Court of Appeal in Tudor Capital Australia Pty Limited v Christensen:[29]

    It is in that context, in my view, that the Arbitrator overlooked material facts, or gave material facts undue or too little weight in deciding the inference to be drawn from the evidence as to the cause of Mr Christensen’s death. The Arbitrator’s failure adequately to consider the evidence exposed error of law on his part in determining the issue whether Mr Christensen suffered “an injury” within the meaning of s 4 of the WCA, which the Deputy President did not identify. The Deputy President’s omission in this respect was a constructive failure to exercise his jurisdiction.

    (Footnotes omitted)

    [28] [2023] SAET 69 at [39].

    [29] [2017] NSWCA 260 at [384] (McColl JA, Macfarlan JA agreeing).

19. Calligeros DPJ’s adoption of this framework of analysis is, with respect, a little difficult to follow. The trial judge referred to the evidence of the file review and the worker carrying the files in his findings. He did not refer to that evidence further in the dispositive part of his reasons. A mere failure to refer to evidence does not necessarily amount to a constructive failure to exercise jurisdiction. Equally, however, it may give rise to a complaint of inadequate reasons, which is jurisdictional in nature.

20. Calligeros DPJ quoted, in support of his reasoning, the statement of Nettle JA in Hunter v Transport Accident Commission and Avalanche:[30]

    It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon.  If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected.  There may be exceptions.  But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material.  Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.  Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

    (Emphasis added; footnotes omitted)

    [30] [2005] VSCA 1 at [21].

21. We understand the effect of Calligeros DPJ’s criticism to be that the trial judge did not, in the dispositive part of his reasons, bring to account the evidence relating to the file review and the files, and therefore failed to address an element of the worker’s case. His Honour said:[31]

    Ms Wastell returning files to the WLS Christies Beach office appears not to have formed part of the judge’s consideration of whether the journey was undertaken in the course of carrying out the duties of employment. … While the Judge may have thought that carriage of the goods and the submission that Ms Wastell was acting as a de-facto courier for the WLS was the basis of her claim, there was evidence that she was conveying files at the time of the accident as well as the goods and that was mentioned by counsel for Ms Wastell in his closing address.

    (Footnotes omitted)

    [31] [2023] SAET 69 at [40].

22. This was not a complaint that the worker had articulated in her Notice of Appeal. Calligeros DPJ did not, however, consider this to be fatal:[32]

    Should the Court act on the error of law identified given that the grounds of appeal do not assert a failure to consider relevant evidence? In my view it should. The relationship between the findings of fact and the conclusion reached by the Judge is raised at least indirectly by the grounds of appeal. Ground 1 asserts that the expression ‘the journey is undertaken in the course of carrying out duties of employment’ was misconstrued or misapplied. Ground 2 asserts that irrelevant facts were taken into account. While I am not persuaded that irrelevant facts were taken into account, I am satisfied that relevant evidence was not referred to and relevant facts were not taken into account. In addition, the relationship between the findings of fact made in paragraphs [32]-[33] and the conclusion reached in paragraph [34] was the subject of argument at the appeal hearing.

    [32] [2023] SAET 69 at [42].

23. Calligeros DPJ then reiterated that a determination under s 7(8) was an amalgam of factual and legal findings.[33] He considered that the error of law being a failure to refer to and consider relevant facts, it was necessary for facts to be found before the ultimate conclusion could be drawn. Drawing in particular on the decisions of this Court in Dallimore v Return to Work Corporation of South Australia (No 2)[34] and Schinckel v Return to Work Corporation of South Australia,[35] he concluded that to do so was beyond the jurisdiction of the Full Bench and that it was necessary to remit the application for review to the trial judge for rehearing at large.

    [33] [2023] SAET 69 at [54].

    [34] [2021] SASCFC 8 at [8].

    [35] [2023] SASCA 32 at [52].

24. Crawley DPJ and Eaton DP both agreed with Calligeros DPJ that the appeal should be allowed for the reasons given by Calligeros DPJ. However, they differed as to the disposition of the appeal, in that they concluded that an order should be made that the claim be accepted.

25. Crawley DPJ considered that with respect to the case of transporting the boxes, the specific finding of the trial judge was that the worker was ‘asked’ to transport goods. He considered that a neutral finding of that nature and the evidence on which it was based did not support a proposition that the worker was employed to transport the goods, or that it was within the power of the employer to direct that it be done. He concluded that for that reason, the worker’s ‘primary contention’ must fail.[36]

    [36]   [2023] SAET 69 at [65]-[66].

26. Crawley DPJ accepted that the worker’s transportation of files for the file review had not been ‘the subject of focused submissions by the [worker] at trial and on appeal’, but considered that the evidence established:[37]

    …that at the time of the accident, the appellant was transporting case files which were utilised for the purpose of the file reviews for which she was obliged to attend the Adelaide office.

    [37] [2023] SAET 69 at [67].

27. Crawley DPJ referred to the statement by Doyle CJ in TransAdelaide v Karanicos,[38] cited above, and noted that counsel for RTWSA had conceded that attending the Adelaide office for file reviews was part of the worker’s duties of employment. He then reasoned:[39]

    It seems self-evident that a file review requires the presence of the files. The employer maintained paper rather than electronic files, which meant that for the purpose of the file review the files needed to be transported to the Adelaide office. The uncontested evidence of the appellant was that she was directed or instructed by the managing solicitor or CEO of the employer to take those files.

    [38] [1996] SASC 5536.

    [39] [2023] SAET 69 at [70].

28. RTWSA submitted that this characterisation of the evidence was problematic; we return to it below. In any event, Crawley DPJ also considered that in taking the files, the worker was undertaking an activity reasonably incidental to a file review, the review being part of her duties of employment.[40] He concluded that however it was characterised, the worker’s taking of the files back to Christies Beach following the file review came within the concept of a journey ‘undertaken in the course of carrying out duties of employment’. Moreover, he considered this to be not a finding of fact, but a conclusion of law. That is, ‘on the facts as found, it was a necessary legal consequence that the [worker] must be held to have been engaged in the course of her employment’.[41] He therefore ordered that that the worker’s claim be accepted.

    [40] [2023] SAET 69 at [71].

    [41]   [2023] SAET 69 at [72], citing Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 134; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 at 155-156.

29. Eaton DP agreed that the appeal should be allowed for the reasons given by Calligeros DPJ. Like Crawley DPJ, however, she considered that the conclusion that the worker’s journey was undertaken in the course of carrying out the duties of her employment required no additional finding of fact.

30. It is relevant, in considering the complaints on appeal, to note the reasoning Eaton DP engaged in when concluding that the facts, on a proper application of the legal test in s 7(8)(a), required no other conclusion:[42]

    Had Ms Wastell lived close to the Christies Beach office and collected the files from that office on the morning of 11 October 2018 and driven with them to the Adelaide office and back before returning home, there would be no question that such a journey would have been in the course of carrying out the duties of her employment as it would have been direct from one of her employer’s offices to the other. The fact of her living some distance on the other side of the Adelaide office explains the course that she took, of taking the files home with her on the afternoon of 10 October 2018, going to the Adelaide office for the file review on 11 October 2018 and working there for the day, before returning with the files to her home that evening, to then return the files to Christies Beach when she returned there to work the following morning. There was no suggestion that this course was not approved by her employer.

    The journey from the Christies Beach office to the Adelaide office and back included her transporting the client files and the responsibility that entailed, unlike a purely personal commute. That she went to and from the file review via her home gave the journey a dual purpose, but did not change the nature of the journey such as to take it outside the course of her employment. At the time of her accident, Ms Wastell was on a journey in the course of and carrying out the duties of her employment.

    [42]   [2023] SAET 69 at [91]-[92].

1. It will be necessary to consider whether these passages involved the drawing of factual conclusions beyond the findings of fact made by the trial judge.

   Section 7(8)(a) of the RTWA

2. Before proceeding to the complaints on the appeal, it is helpful to consider further the treatment of the predecessor section to s 7(8), being s 30(5) of the WRCA, in TransAdelaide v Karanicos,[43] State of South Australia v Brophy[44] and Wheeler v South Australia.[45]

   [43] [1996] SASC 5536.

   [44] (1997) 68 SASR 97.

   [45] (2012) 114 SASR 111.

3. Section 7(8) of the RTWA is in materially the same terms as was s 30(5) of the WRCA prior to its repeal. Relevantly, s 30 had been amended in 1994. TransAdelaide v Karanicos[46] concerned s 30(5) shortly after those amendments were made. In that case, Doyle CJ considered it was clear that the intention behind the amended s 30 was to narrow the scope of what was a compensable disability. On the question of whether a journey was undertaken in the course of carrying out duties of employment, his Honour referred[47] to observations of Barwick CJ in Danvers v Commissioner of Railways (NSW).[48] These were to the effect that what is in the course of employment cannot be limited to what the employer is required to do by the express terms of the employment contract. It will include:[49]

   the doing of “whatever is incidental to the performance of the work” and will include what he “is reasonably required, expected or authorized to do in order to carry out his actual duties”.

   [46] [1996] SASC 5536.

   [47] [1996] SASC 5536 at [22].

   [48] (1969) 122 CLR 529 at 536.

   [49]   Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529 at 536, citing Henderson v Commissioner of Railways (WA) (1937) 59 CLR 281 at 298, 294.

4. Adopting that approach, Doyle CJ held that the test was to be applied in a liberal and practical manner and was not limited to those things which the worker is literally or specifically required to do. He also considered that it was necessary to take into account ‘contemporary conditions and contemporary understandings of the concept of duties of employment’.[50] In the passage referred to by the trial judge in this case and quoted above, he then indicated that the focus of the phrase ‘duties of employment’ was a reference to the ‘carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do’. He accepted that this was not a precise test and had to be applied in a practical manner. It is convenient to set out, again, the balance of that paragraph:[51]

   But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context.

   [50]   TransAdelaide v Karanicos [1996] SASC 5536 at [22].

   [51]   TransAdelaide v Karanicos [1996] SASC 5536 at [23].

5. Applying this approach, Doyle CJ considered that a journey undertaken to obtain treatment for a compensable disability, or to obtain a certificate in connection with such a disability, would not be regarded as carrying out the duties of employment.[52]

   [52]   TransAdelaide v Karanicos [1996] SASC 5536 at [24].

6. State of South Australia v Brophy[53] concerned a police officer who was involved in an accident and sustained injury when travelling home from work. The officer was riding his police issue motorcycle, which he was entitled to do, and was wearing his police uniform. Reg 20 of the Police Regulations 1982 (SA) required him to intervene should he observe an occasion calling for the exercise of police powers. He had his police radio for that purpose. No such occasion arose on the journey. He was not being paid for the journey.

   [53] (1997) 68 SASR 97.

7. The Court held that the facts were insufficient to establish a real and substantial connection between the officer’s employment and the accident. In the absence of the obligation to exercise the powers of a police officer crystallising on the journey, the journey was for private purposes. The use of the motorcycle arose from a concession granted by the employer. That concession did not represent instructions in the nature of or course of employment.

8. Doyle CJ reiterated his observations of principle in Karanicos. In the application of those principles to the case in question, he said:[54]

   Section 30(5)(a) requires that the journey be undertaken in the course of carrying out duties of employment. To my mind it is unclear whether that means the journey must begin or be initiated in the course of carrying out duties of employment, or whether it is a reference to the character of the journey as it unfolds. In the present case, in my opinion, the journey was not undertaken in the sense of begun or commenced in the course of carrying out duties of employment. It was a journey that commenced for a private purpose, travelling from the place of employment to the worker’s home. Nor did anything happen in the course of the journey that altered its private or non-employment related aspect. The only thing that can be said is, as I have already said, that should the occasion arise in the course of the journey for the exercise of the worker’s powers as a police officer, he was obliged and expected to exercise them. But in that respect the worker’s position was no different that of any other police officer making a journey to the officer’s home or on a police vehicle, walking or on public transport. Nor, except for the impact of the uniform, was the worker’s position any different from that of a police officer not in uniform.

   (Emphasis in original)

   [54]   State of South Australia v Brophy (1997) 68 SASR 97 at 103.

9. Doyle CJ considered that the fact that the officer was always on duty, in the sense that he had an obligation to exercise his powers if the occasion arose, did not mean that he was at all times carrying out duties of employment.[55] As to the question of the ‘benefit’ to the employer of his being able to use the police motorcycle to travel between work and home, a question to which the trial judge in the present case had particular regard, Doyle CJ said:[56]

   Nor is the position altered, in my opinion, by the restrictions imposed upon the worker as a result of his decision to use his police motorcycle to travel home. No doubt there were benefits for him and the Commissioner of Police arising from this. For the worker, the benefit is convenient travel to his home free of charge. For the Commissioner of Police there is the benefit of having a member of the force as a visible presence on the road and able to use his motorcycle should the need arise. But, in the end, in my opinion there is no legal difference between the position of the worker and the position of a member of the force in uniform travelling home by other means.

   [55]   State of South Australia v Brophy (1997) 68 SASR 97 at 103.

   [56]   State of South Australia v Brophy (1997) 68 SASR 97 at 103-104.

10. In the present case, the trial judge characterised Doyle CJ’s decision in the following way:[57]

    It will be apparent that in driving his police issued motorcycle home that Sergeant Brophy was performing many of the functions that would be expected of an on-duty police officer and that the Police Force was deriving some benefit by him being on the road in police uniform on a police motorcycle. But this was not enough to establish that he was carrying out his duties of employment.

    [57] [2023] SAET 4 at [28].

11. We do not think it is correct to say that the police officer was performing ‘many of the functions’ expected of an on-duty police officer. He was obliged to exercise his powers if the occasion arose. That was insufficient to warrant a conclusion that he was carrying out duties of employment. The benefit to his employer of his visibility on the road did not change that.

12. As we will explain, on the present appeal the apparent ‘benefit’ to the worker’s employer by transporting the files (or the boxes) was not the issue. The issue was whether, on all of the facts as found, the only available conclusion was that the journey was undertaken in the course of carrying out duties of employment.

13. That question was raised on appeal in Wheeler v State of South Australia.[58] A police officer had been attending a counter-terrorism training course in Mount Isa. He stayed at a motel during his stay, along with other course participants. The employer had organised this accommodation. After the last day, and following a debriefing session, the participants were free to leave. They attended the adjacent Police Social Club. After some hours of socialising and drinking, the officer went to buy some pizza before returning to the motel. That involved deviating from the direct route to the motel. There was an altercation at the pizza bar and the officer was assaulted.

    [58] (2012) 114 SASR 111.

14. White J referred to the judgment of Doyle CJ in Karanicos and said:[59]

    Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of the employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of these circumstances may amount to the carrying out of a duty of employment.

    [59]   Wheeler v State of South Australia (2012) 114 SASR 111 at [55].

15. White J considered that it could not be said that the officer in that case was carrying out a duty of employment in the sense of engaging in an activity for which he was employed. He distinguished cases involving workers employed as drivers, couriers, district nurses or commercial travellers. Moreover, the officer did not undertake the journey until well after he had completed his employment activities and had become free to use his time as he wished.[60]

    [60]   Wheeler v State of South Australia (2012) 114 SASR 111 at [56]-[57].

16. Otherwise, White J considered that the fact that the motel was provided as a temporary place of residence by the officer’s employer did not change the analysis. There could not be said to be an implicit direction that the officer was to use that motel even after the conclusion of the course:[61]

    There was no suggestion that the appellant was to carry out any further employment duty or function at the motel. At the time of commencing the journey the appellant was free to move as he chose. He exercised that freedom by going first to the Carpentaria Club before returning to the pizza bar.

    [61]   Wheeler v State of South Australia (2012) 114 SASR 111 at [58].

17. Wheeler is relevant not only in the assistance it provides in characterising whether a worker’s journey was undertaken in the course of employment. As discussed above, it assists with the question of law that can be distilled from the ‘amalgam’ inquiry as to the application of s 7(8) when a complaint is made about the conclusion. It is also of assistance, as discussed below, in the approach to be taken where a question of law was not squarely raised in a notice of appeal. In that case, notwithstanding that the application of s 30(5) had not been raised in the Tribunal below, the Full Court was able to conclude that, on the facts as found by the trial judge, the officer’s disability did not arise from his employment as it did not come within s 30(5).[62]

    [62]   Wheeler v State of South Australia (2012) 114 SASR 111 at [59].

18. Against the background of these cases, we turn to the complaints on appeal and what, if any, question of law is raised by them.

    The appeal

    Denial of procedural fairness by the Full Bench

19. Ground 1 of the Notice of Appeal complains of a denial of procedural fairness by the Full Bench. Specifically, it reads:

    1.The Full Bench erred in law by not affording the Appellant with procedural fairness in that:

    1.1    It allowed the appeal on the ground that the Trial Judge (Gilchrist DPJ) had failed to refer to relevant evidence.

    1.2    The precise error of law on which the appeal was allowed is not clearly identified in the reasons of the Full Bench.

    1.3    It appears that the Full Bench may have considered that the Trial Judge failed to give legally adequate reasons or constructively failed to exercise jurisdiction.

    1.4    The matters referred above were not the subject of any ground of appeal or argument advanced by the Respondent (the Appellant below).

    1.5    Further the matters referred to above were not raised or squarely or sufficiently raised with the Appellant so as to afford procedural fairness.

20. This form of essayed particulars is of limited assistance, especially when the appeal lies only on a question of law. The complaint of procedural fairness is particularised in Particulars 1.4 and 1.5, which attach to ‘the matters referred to above’. Particulars 1.1 and 1.3 meet this description, although Particular 1.3 is expressed in a curiously diffident manner. However, it is difficult to see how particulars 1.4 and 1.5 could be referring to Particular 1.2, as that seems to be a complaint of inadequate reasons on the part of the Full Bench. As it happens, Particular 1.2 is in effect repeated by Particular 2.1, under a separate ground of appeal. We address the question of adequate reasons below, and therefore do not consider Particular 1.2 here.

21. A failure by the Full Bench to accord procedural fairness on an appeal on a question of law would certainly constitute an error of law by the Full Bench. The question of law that this complaint raises may be expressed in the following way:

    Whether, having regard to the scope of the Notice of Appeal and the conduct of the appeal hearing before the Full Bench, it was open as a matter of procedural fairness for the Full Bench to decide the appeal on the basis of the putative error that the trial judge had failed to refer to and consider (or give reasons for rejecting) the evidence relating to the file review and the worker’s carriage of the files.

22. We have used the term ‘putative error’ here as the question is concerned only with the issue of procedural fairness and not the merits of the Full Bench’s conclusion (which are partly the subject of Ground 3). We have also described the putative error slightly discursively as RTWSA further complains (in Grounds 1.2 and 2) that it does not know precisely what legal error the Full Bench found.

23. There is a further complication arising with respect to this question. The worker submitted that any failure of procedural fairness on the part of the Full Bench would not ultimately be material. The question of whether the trial judge had erred in law by not addressing the ‘files’ evidence was argued comprehensively before this Court on its consideration of Ground 3. The effect of the worker’s submission, as we understood it, was that if this Court were to hold that the trial judge’s reasons were affected by an error of law, the fact that the Full Bench had failed to accord procedural fairness in reaching that conclusion would not be material to the disposition of this appeal.

24. There can be no doubt that this logic is persuasive where an appeal lies by way of rehearing from a first instance review. Similarly, where an appeal lies on a question of law only, and the same question of law arises in successive appellate jurisdictions, a failure to accord procedural fairness in the first instance may not necessarily be material. That is certainly where the second appeal operates effectively by way of a ‘rerun’ of that question of law. However, the question here goes to whether the jurisdiction of the Full Bench was engaged to answer a question of law putatively raised in respect of the ‘files’ issue. RTWSA has, in this Court, had the opportunity to prosecute its substantive arguments on whether, as a matter of law, the files issue required a positive answer under s 7(8)(a). Given our approach to that question, addressed below, it remains necessary to determine whether the Full Bench’s jurisdiction to answer that question was engaged.

25. As discussed above, the trial judge referred to the evidence relating to the files in his findings of fact. He did not refer to that evidence in the dispositive part of his reasons. He only referred there to the transport of ‘goods’ and ‘the two boxes’ to the Christies Beach office.

26. The Notice of Appeal to the Full Bench did not complain about that failure. Particular 1.a complained that the trial judge failed to conclude that the worker had been complying with an instruction from the employer in the exercise of its control as an employer. However, in this regard, it incorporated only the worker’s actions in ‘delivering office supplies and paraphernalia to the Christies Beach office’.

27. Particular 1.b complained that the judge had allowed the purpose of travelling to work to obscure that the duties of employment were being carried out. This particular was not, on its face, confined to the transporting of the boxes. By the same token, nowhere in the particulars did the worker complain of a failure to address the evidence of the files.

28. The worker’s submissions to the Full Bench proceeded in line with the phrasing of these grounds of appeal. In the course of argument, the Full Bench raised the potential significance of the files with counsel for the worker for the first time, with the following exchange occurring:

    EATON DP:…  just on that issue of the context, just considering the factual findings which I understand aren’t contested, that this journey where Ms Wastell was injured occurred on day 3 of other than her usual duties at Christies Beach. So on the 10^th she transported files from Christies Beach to home in preparation for file reviews in the Adelaide office on the 11^th, and then on the 11^th she had those file reviews in the Adelaide office, and that’s when the request came to take other items back to Christies Beach, and then on the 12^th, which is kind of a day 3, her journey back to Christies Beach with the files that she’d been directed to bring to the meeting, she was directed to attend in Adelaide. All of that is context, isn’t it, relevant context to the duty being performed on the morning of the 12th on your case?

    COUNSEL:It certainly is context. I don’t shy away from that, however, what I say is, if the conclusion is she was performing a duty of employment, there’s no need to consider the remaining context, that is, as I’ve described it in the written submissions, that is an unwarranted gloss on the plain statutory language.

    CALLIGEROS DPJ:     But I think her Honour might be implying that there was a specific or unusual duty which may have gone over the course of more than one day, and which may have related to this file review.

    COUNSEL:I accept that, your Honour. I accept that is the case. However, the question, in my submission, with respect, is, was a duty being performed regardless of how it was being performed, and there was no evidence as to whether there was an expectation as to how it would be performed.

    CALLIGEROS DPJ:     Well, I think the implication might be that it was a necessary part of the file review to return the files and various other items to the Christies Beach office.

    COUNSEL:Sorry, I misunderstood, if that’s the case.

29. This exchange shows that the significance of the files evidence had not formed part of the worker’s case on appeal as originally framed. However, after further explication of the point between the Full Bench and counsel, counsel warmed to the point, albeit it as an ‘added aspect’ of the duty:

    COUNSEL:Yes, I apologise, your Honor, I misunderstood the question. But your Honour is quite correct in that this was a normal part of her duties, albeit something that occurred sporadically approximately once a month, indeed to take files from one office to the other for the purpose of a file review, and then return them. The added aspect of the duty, if you like, is this transporting other pieces of miscellaneous office equipment and so forth between the offices.

    EATON DP:But does that matter actually? I mean, how else was she going to get the files to Adelaide and back?

    COUNSEL:Indeed, it’s perhaps an added string to the bow, if your Honour likes. The fact is that there was a requirement on the evidence for her to attend Adelaide as part of which there was a requirement for her to review her files and implicitly at least, if not expressly, to transport the files with her.

1. After a further exchange as to whether the duty to take the files was express or implicit, counsel then looked to reconcile this development with the case as framed:

   COUNSEL:What I should say about when saying that the context is irrelevant, what I mean by that is once you identify the duty, if the conclusion is that is a duty at the request or direction of the employer, that is all that is necessary. So where his Honour has gone on to consider whether she was being paid and various other factors, that’s the part of the inquiry that is unnecessary, in my submission. Once there is a finding that either she needed to take the files for the purpose of her file review, or she needed to take these items from one office to another, once that finding has been made that is sufficient to bring the conclusion within the phrase “duties of employment”.

   CRAWLEY DPJ: Do these two boxes of materials really take that any further, or are they actually a red herring?

   COUNSEL:On one view of the facts, perhaps, there was certainly focus upon that at trial but either way – and I should say, sorry tracking back a little bit, the descriptive evidence that the appellant gave at trial was focused – leaving aside the question of transporting these files, was focused on precisely what she was told or asked to do, and that focused upon these items of office paraphernalia, but in terms of the general practice of attending at the Adelaide office with the files, that was an undisputed piece of evidence.

   Either of those limbs, if you like, is sufficient, in my submission, for the conclusion that this was acting in the course of employment.

2. It is important to characterise this progression clearly. It was the Full Bench that raised the potential significance of the files case. Counsel eventually adopted it. Ground 1.b of the Notice of Appeal was potentially broad enough to encompass this expansion of the worker’s case on appeal, but this was an expansion that occurred in the course of submissions, at the instigation of the Full Bench.

3. Counsel for RTWSA took issue with this expansion, submitting that the worker had not run a case that she had been carrying out duties of employment by transporting the files. He submitted that there was ‘a Metwally v University of Wollongong[63] problem with that if that is adopted by the [worker] on appeal’. In response, Calligeros DPJ accepted, in argument, that the emphasis of the worker’s case was on the transport of the boxes. However, he observed that there had been repeated reference throughout the evidence and counsel’s submissions at trial to the transportation of the files. Counsel for RTWSA accepted that he ‘couldn’t quarrel’ with the proposition that one of the duties of employment was to attend the Adelaide office for file reviews. Shortly after that, once Calligeros DPJ had noted the worker’s evidence that she had transported the files, the following exchange occurred:

   CALLIGEROS DPJ:     Wasn’t it on this occasion then an incidental to her carrying out her duties of employment to attending Adelaide for a file review?

   COUNSEL:I think that’s possible, your Honour. Yes. But the fact of the matter is that the test of carrying out the duties of employment, it’s not limited to just that fact. The wording of s 7(8)(a) in its entirety needs to be considered. The journey has to be undertaken in the course of carrying out duties of employment.

   [63]   RTWSA was here referring to University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and the principle that a party is bound by the conduct of its case.

4. The exchange as to the significance of the files continued between counsel and the Full Bench. It is difficult to see, in light of the entirety of the exchange, that RTWSA maintained the objection that the ‘files’ case had not been part of the worker’s case at trial. That said, the worker’s case had clearly focused on the transporting of the boxes.

5. In any event, the complaint before this Court is not that the ‘files’ case was not part of the worker’s case at trial. It is that RTWSA was denied procedural fairness before the Full Bench in that the error articulated by Calligeros DPJ, being ‘the failure to refer to and consider the carriage of files’, was not a ground of appeal or the subject of argument before the Full Bench and was not raised sufficiently with RTWSA.

6. As to that question, the following exchange occurred in the course of RTWSA’s submissions:

   CRAWLEY DPJ:  Did the trial judge really deal with the question about the significance of the transportation of files as distinct from the two boxes?

   COUNSEL:It’s clear that his Honour accepted that there was a value or a benefit to the employer in transporting what she was transporting.

   CRAWLEY DPJ:  Yes, but the focus on the paragraphs 32 and 33 of his Honour’s judgment seem to be very much on the two boxes. Although paragraph 32 talks about transporting goods, in paragraph 33 he is referring to the two boxes to the Christies Beach office. It’s not apparent to me that his Honour is really directing his mind to the obligation incidental to the file review. And that may well be as you say … because that really wasn’t the way that the case was pitched, notwithstanding there was evidentiary references to it.

   …

   EATON DP:It’s a factual finding at paragraph 4. He didn’t ignore it.

   CRAWLEY DPJ:  But did he direct his mind to it when he got to paragraphs 32 to 34.

   CALLIGEROS DPJ:     He has found that files were being transported in paragraph 4. And it must follow that the files had to be returned.

   COUNSEL:I think the reference to the transporting of the two boxes is more of a shorthand reference rather than a strict finding that that was all that was being transported in the context of the entirety of his reasons. I think it can be inferred that he was aware that there were files for the file review and he was also aware of the two boxes … So I think the two boxes is not intended by His Honour to be an exhaustive description of what she was transporting.

7. Counsel here offered what was likely the only possible way of characterising the judge’s words at [33] as incorporating the files as well. However, we do not think that characterisation can ultimately be sustained. The trial judge’s reference to the two boxes at [33] was preceded at [32] by the observation, which framed these dispositive paragraphs, that ‘In this case, WLSSA asked Ms Wastell to transport goods to its Christies Beach office’. However, there was no evidence that the worker was asked to transport the files to the Christies Beach office. Subject to the evidence bearing it out, the case, insofar as it was run, was that carrying the files back to Christies Beach was a necessary incident of having taken them to Adelaide for the file review. That aspect of the case cannot reasonably be seen to come within the judge’s framing at [32].

8. More to the immediate point, however, is the observation that in the course of argument, the Full Bench did put to counsel for RTWSA that the trial judge had not addressed the files in the dispositive part of his reasons. The question then is whether, in light of the terms of the Notice of Appeal to the Full Bench and the issues raised at the hearing, RTWSA was denied procedural fairness in the disposition of the case by the Full Bench by reference to the files issue.

9. This was a complaint of procedural fairness only. RTWSA did not submit before this Court that it was impossible to expand the issues – or the scope of issues raised – at the hearing where the Notice of Appeal did not expressly raise an issue. In the circumstances of this matter, that is not surprising. Section 32(1)(c) of the SAET Act provides that the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.

10. That section does not grant permission to depart from the rules of procedural fairness. Moreover, the Full Bench on an appeal is here confined to an appeal on a question of law. Within those confines, however, where an issue relevant to the substantial merits of the case only comes into focus at the hearing, the court should address it if satisfied it has all of the facts bearing on the issue as would have been the case had it been raised below.[64] This Court has a power to do so in UCR 218.17(2):

    The Court may, if it considers it to be in the interests of justice, determine an appeal on the merits notwithstanding a failure of a party to raise or state properly a ground of appeal or alternative contention in the notice of appeal or a notice of alternative contention.

    [64]   Suttor v Gundowda (1950) 81 CLR 418 at 438.

11. Section 32(1)(c) of the SAET Act positively requires flexibility of this kind, subject to the jurisdictional limits of the Tribunal. One of those limits is, of course, the opportunity of the opposing party to address the issue.

12. In the present case, notwithstanding that the worker did not raise the failure of the trial judge to refer to the evidence supporting the ‘files’ issue in the dispositive paragraphs, we are not persuaded that the Full Bench denied RTWSA procedural fairness in determining the appeal on that basis. The files evidence had formed part of the worker’s case at trial. The Full Bench raised the matter with counsel. Counsel for the worker adopted the relevance of the evidence of the files. The Full Bench further put to counsel for RTWSA the failure of the trial judge to address that evidence in the dispositive paragraphs. Counsel gave a considered response.

13. This conclusion is subject to the next complaint, raised in Ground 1.2 and more comprehensively in Ground 2, asserting a failure on the part of the Full Bench to identify the precise legal error committed by the trial judge. Insofar as Ground 1 relates to procedural fairness, we would grant leave to appeal but dismiss the ground. To reiterate the question of law raised by this ground:

    Whether, having regard to the scope of the Notice of Appeal and the conduct of the appeal hearing before the Full Bench, it was open as a matter of procedural fairness for the Full Bench to decide the appeal on the basis of the putative error that the trial judge had failed to refer to and consider (or give reasons for rejecting) the evidence relating to the file review and the worker’s carriage of the files.

14. We answer this question, ‘yes’.

    Failure to identify the precise error of law

15. As identified above, Ground 1.2 complains that the ‘precise error of law’ was not identified in the reasons of the Full Bench. This complaint is repeated in Ground 2, which reads, in its entirety:

    2.The Full Bench erred in law by allowing the appeal:

    2.1    Without identifying the precise legal error that it held had been committed by the Trial Judge.

    2.2    To the extent that it allowed the appeal on the basis that the Trial Judge constructively failed to exercise his jurisdiction, the Trial Judge did not fail to exercise his jurisdiction (constructively or otherwise), nor did he fail to refer to any material evidence.

    2.3    Even if the Trial Judge had failed to refer to relevant evidence (which he did not) such a failure would only have given rise to an error of law if that rendered the Trial Judge’s reasons legally inadequate (which they were not).

16. We have set out the relevant passages from the judgment of Calligeros DPJ, above. Critically, his Honour held that ‘the failure to refer to and consider the carriage of files was an error of law’[65] and went on to say that ‘a failure to refer to or consider relevant evidence is an error of law and a failure to identify such an error is a constructive failure to exercise jurisdiction’.[66]

    [65] [2023] SAET 69 at [38].

    [66] [2023] SAET 69 at [39].

17. Calligeros DPJ did not here articulate the question of law raised by this putative error. A question of law can be identified, albeit that it would have a narrow compass. The worker offered a formulation that identified two questions of law:

    Whether, on the proper construction of s 7(8)(a), and having regard to the conduct of the case at first instance:

    (1)the fact that the worker was directed to attend at the Adelaide office for a file review with the physical files was relevant and material to the characterisation of the journey;

    (2)the Tribunal was required to give reasons addressing the significance of that issue in resolving the ultimate question of characterisation.

18. We accept that questions so phrased arise out of a putative complaint that the judge failed to disclose his reasons for excluding that evidence as a consideration in the disposition of the application. We have described this as a putative complaint because RTWSA now submits that it is not clear what error Calligeros DPJ had identified.

19. Ground 2.1 (together with Ground 1.2) before this Court is a complaint of a failure by the Full Bench to give adequate reasons. RTWSA submitted that the Full Bench (in the reasons of Calligeros DPJ) did not explain its conclusion other than by referring to circumstances where there might be a ‘constructive failure to exercise jurisdiction’ and referring to Tudor Capital Australia Pty Limited v Christensen[67] and Hunter v Transport Accident Commission and Avalanche.[68]

    [67] [2017] NSWCA 260 at [384] (McColl JA, Macfarlan JA agreeing).

    [68] [2005] VSCA 1 at [21].

20. As discussed above, we respectfully do not find the reasoning here to be clearly expressed. However, also as discussed above, in our view it is sufficiently clear that Calligeros DPJ was saying that the trial judge did not, in the dispositive part of his reasons, bring to account the evidence relating to the file review and the files, and therefore failed to address an element of the worker’s case.

21. RTWSA submitted that the failure by the Full Bench to identify the precise legal error it considered to have been committed by the trial judge amounted to a failure to provide adequate reasons. As noted above, Calligeros DPJ said, ‘a failure to refer to or consider relevant evidence is an error of law and a failure to identify such an error is a constructive failure to exercise jurisdiction’.[69] For the reasons given above, we find this statement, in these terms, difficult to understand. It is certainly not correct if expressed as broadly as that.

    [69] [2023] SAET 69 at [39].

22. Nevertheless, we also think it is sufficiently clear from the context in which Calligeros DPJ made this statement that the identified error was one of failure to give adequate reasons for dismissing the worker’s case insofar as it related to the carriage of the files. In this regard, we do not consider that RTWSA’s complaint of a failure to identify the precise error of law is strong. Complaints of a failure to give adequate reasons and a failure to have regard to a material fact necessarily often overlap. In Boyle (a pseudonym) v The Queen,[70] this Court explained that a failure to refer to relevant evidence may amount to a failure to give adequate reasons:[71]

    Reasons are to be read as a whole.[72] It is not necessary for a judge or magistrate to give extensive and elaborate reasons.[73] The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision.[74] However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.[75] Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge.[76]

    (Footnotes in original)

    [70] [2022] SASCA 50.

    [71]   Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [119].

    [72]   R v Ricciardi (2017) 128 SASR 571 at [25].

    [73]   R v Ricciardi (2017) 128 SASR 571 at [25]; R v Mayger (2013) 116 SASR 488 at [21]; R v Keyte (2000) 78 SASR 68 at [52]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–6.

    [74]   DL v The Queen (2018) 266 CLR 1 at [32].

    [75]   Fleming v The Queen (1998) 197 CLR 250 at [28].

    [76]   DL v The Queen(2018) 266 CLR 1 at [32]–[33].

23. This passage is consistent with that in Hunter v Transport Accident Commission and Avalanche,[77] referred to above.

    [77] [2005] VSCA 1 at [21].

24. In our view, to the extent that it is necessary to decide, the Full Bench indicated adequately, if in terms that, respectfully, could have been clearer, that the error was one of failure to give adequate reasons. That is insofar as the worker’s case was founded on her carriage of the files to Christies Beach following the file review in Adelaide the day before. That then raises the balance of the complaint under this ground, being whether the trial judge’s reasons were, indeed, inadequate in this regard.

25. In DL v The Queen, the plurality said:[78]

    The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

    (Footnotes omitted)

    [78]   DL v The Queen (2018) 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ).

26. Similarly, Nettle J (dissenting in the result) said:[79]

    Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.

    (Footnotes omitted)

    [79]   DL v The Queen (2018) 266 CLR 1 at [131].

27. As the Court of Criminal Appeal observed in McNamara v The Queen,[80] these passages emphasise that what is required of reasons in a given case depends on the particular contests between the parties and the factual findings necessary to resolve those contests. The question of the adequacy of reasons in any given case necessarily incorporates this contextual inquiry.

    [80] [2021] SASCFC 2 at [82].

28. It is clear enough that the worker’s case at trial was framed in terms that the worker’s duties included ‘courier’ duties. The ‘files’ issue seemed largely to be subsumed into that case. We say ‘largely’ because counsel did, in submissions before the trial judge, refer to the evidence of the files separately. Counsel said the following:

    [The worker] was a solicitor employed at the Christies Beach office primarily. At Women’s Legal Service. But commuted occasionally to the Adelaide office. For file reviews and other tasks.

    And it was routine during the course of that for her to be either given items by the Adelaide office. Or directed to pick up items by the Christies Beach office. For transport between the two. And that included not just legal files, which were necessary for her to conduct file reviews. But also various pieces of paraphernalia.

    …

    And as your Honour has heard in oral evidence it really is this transportation of both office paraphernalia but also files between the two offices. That constitutes the course of employment. Which she was in the process of undertaking at the time she was injured.

    (Emphasis added)

1. Counsel later again referred to the files in the context of invoking Doyle CJ’s statement in Karanicos to the effect that it is necessary to view the journey in context. However, this reference was very much made in support of a submission that the journey was made for the purpose of transporting goods.

2. The trial judge’s focus on the transporting of goods is, in these circumstances, understandable. However for the reasons discussed above, the dispositive part of the trial judge’s reasons[81] was limited to the transport of the boxes from Christies Beach to Adelaide. On a fair reading of the reasons, the trial judge did not bring to account the carriage of the files or the reason for that.

   [81]   [2023] SAET 4 at [32]-[33].

3. RTWSA complained before the Full Bench and in this Court that this limit to the trial judge’s reasons reflected all that the worker put in contest. However, while this complaint reflects the focus of the worker’s case at trial, it does not reflect the entirety of that case. For the reasons explained above, the worker’s case did incorporate, if only in a muted fashion, a proposition that the carriage of the files back to Christies Beach was a necessary incident of the file review at the Adelaide office.

4. In our view, it was necessary for the trial judge to address the evidence of the files and the file review and to explain the significance, or otherwise, of that evidence to his conclusion that the worker’s journey was not undertaken in the course of her employment. In failing to do so, the reasons of the trial judge were inadequate. Moreover, the reasons of the Full Bench adequately identified this error.

5. For these reasons, we would grant leave to appeal on Ground 2 but would dismiss the ground.

   Impermissible findings of fact by the Full Bench

6. Ground 3 reads as follows:

   3.     The majority of the Full Bench erred in law (per Crawley DPJ and Eaton DP):

   3.1    By exceeding jurisdiction by impermissibly making factual findings to dispose of the Appeal when the Appeal to the Full Bench is limited to dealing with errors of law.

   3.2    In proceeding on the basis that the question of whether, on the primary facts found, a journey is undertaken in the course of carrying our duties of employment is a question of law.

   3.3    In the further alternative, wrongly concluded in law and/or in fact that, on the primary facts as found, the journey was undertaken in the course of carrying out the duties of employment.

   3.4 Misconstrued and misapplied s 7(8)(a) of the Return to Work Act 2014.

7. Again, RTWSA has not articulated the question or questions of law raised by these grounds.

8. As explained above, while all members of the Full Bench would have allowed the worker’s appeal, only Calligeros DPJ would have remitted the matter to the trial judge. His Honour considered that the Full Bench could not make a substitute determination. Drawing on his understanding of the decision of White J in Wheeler v South Australia,[82] discussed above, he concluded:[83]

   Whilst the ultimate decision whether s 7(8) of the RTW Act is satisfied may be an amalgam of legal and factual findings, facts must be found before the law is applied and a conclusion made. As the error of law here is a failure to refer to and consider relevant facts, the disposition must involve making findings of fact, which this Full Bench cannot do. As observed in Return to Work Corporation of South Australia v Haack,[84] an appellate court usually remits a matter to be reheard in entirety.[85] Kitto J described that as the ‘general rule’ in Pateman v Higgin.[86]  The exception to the general rule is when the court considers ‘that more injustice will be done by setting the matter at large again’.[87] This case does not fall into that category. Justice is more likely to be done if this matter is reheard at large.

   (Footnotes in original)

   [82] (2012) 114 SASR 111 at [65].

   [83] [2023] SAET 69 at [54].

   [84]   [2022] SAET 114.

   [85] Ibid [35].

   [86] [1957] HCA 62; (1957) 97 CLR 521 at 527 citing Hutchinson v Piper [1812] EngR 349; 128 ER 447 at 448.

   [87]   Haack at [35] citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1834; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [80]‑[81] per Kirby J.

9. Calligeros DPJ considered that remittal was required because the error was ‘a failure to refer to and consider relevant facts’. We have characterised that error as a failure to give adequate reasons. By contrast, Crawley DPJ and Eaton DP considered that on the facts as found, it was a necessary legal consequence that the worker’s journey was undertaken in the course of carrying out duties of employment.

10. Ultimately, the appeal before the Full Bench being limited to a question of law, the appropriate orders are indicated by the question of law with which the Full Bench was seized. We have identified, above, a question of law that could have been formulated on the appeal to the Full Bench. We set it out again here:

    Whether, on the facts as fully found by the trial judge, the only conclusion reasonably open was that Ms Wastell’s journey was undertaken in the course of carrying out her duties of employment within the meaning of s 7(8)(a) of the RTWA.

11. We will refer to this question of law as the underlying question. The conclusion of Crawley DPJ and Eaton DP was to the effect that the underlying question arose and should be answered, ‘yes’. With respect to their Honours, we would accept that the underlying question can be distilled from the grounds of appeal to the Full Bench. We reiterate that it would have been preferable if a question in these or like terms had been expressed by the worker.

12. However, as discussed, the worker’s Notice of Appeal was directed to the consequences of the judge’s findings about the boxes only. The Full Bench raised the files issue, as a further factual matter relevant to the ultimate legal conclusion, only in the course of argument. Moreover, it did so in terms of whether the judge had adequately addressed the evidence of the files.

13. The question of law that arose out of that intervention by the Full Bench was different from the underlying question. We have accepted the respondent’s formulation of that question and repeat it here:

    Whether, on the proper construction of s 7(8)(a), and having regard to the conduct of the case at first instance:

    (1)the fact that the worker was directed to attend at the Adelaide office for a file review with the physical files was relevant and material to the characterisation of the journey;

    (2)the Tribunal was required to give reasons addressing the significance of that issue in resolving the ultimate question of characterisation.

14. In effect, although without saying as much, the Full Bench answered these questions, ‘yes’ and ‘yes’. Crawley DPJ and Eaton DP also (in effect) answered the underlying question ‘yes’. By contrast, Calligeros DPJ considered that the Full Bench could not answer the underlying question as the ‘amalgam’ inquiry had not been completed by the trial judge, at least as far as the files were concerned.

15. RTWSA now complains that the majority members exceeded the jurisdiction of the Full Bench by impermissibly making factual findings. This much, at least, can be gleaned from Ground 3. This ground raises before this Court what we have described above as the underlying question of law.

16. Crawley DPJ’s reasoning that it was a necessary legal conclusion from the facts as found by the trial judge, that the journey was undertaken in the course of the worker’s duties of employment, was as follows:[88]

    Quite properly on appeal, counsel for the respondent conceded that attending the Adelaide office for the purpose of file reviews was part of the appellant’s duties of employment. It seems self-evident that a file review requires the presence of the files. The employer maintained paper rather than electronic files, which meant that for the purpose of the file review the files needed to be transported to the Adelaide office. The uncontested evidence of the appellant was that she was directed or instructed by the managing solicitor or CEO of the employer to take those files.

    The direction to take the files was something within the power or control of the employer to direct the appellant to do. Equally, in taking the files the appellant was undertaking an activity reasonably incidental to submitting to a file review as she was required to do as part of her duties of employment.

    In either circumstance, being in the course of returning those files to the Christies Beach office following completion of the file review comes within the concept of being a journey ‘undertaken in the course of carrying out duties of employment’. Although the borderline between questions of fact and questions of law can be notoriously difficult to delineate, this is not a finding of fact, but a conclusion of law. On the facts as found, it was a necessary legal consequence that the applicant must be held to have been engaged in the course of her employment.

    (Footnotes omitted)

    [88]   [2023] SAET 69 at [70]-[72].

17. The essential submission of RTWSA was that while it was not contentious that the worker was required to attend at the Adelaide office from time to time for the purpose of file reviews, and that taking files was necessary for those reviews, there were insufficient findings of fact to say that the only reasonable conclusion was that the journey was undertaken in the course of carrying out duties of employment. There was no evidence about the actual circumstances of the worker taking these files home and then taking them to work the next day. For example, there was no evidence about whether the worker made a choice to carry them where there was an option for them to have been couriered, or whether carrying them was a necessary part of her duties.

18. The worker’s affidavit included the following evidence:

    There was also an expectation that as part of my employment, I would attend at the Adelaide Office regularly for meeting and mentoring. In particular, I was required to have file reviews at regular interviews. At that time the WLSSA had physical/paper files.

    …

    I was employed for the new InDigo Domestic Violence Program. It was a new program and we were trying to get systems and procedures in place to streamline the program. The day prior to the accident, I had to attend the Adelaide office for a meeting as well as regular file reviews with the Managing Solicitor, Jody Knighton. I didn’t attend at the Christies Beach office at all that day (11 October 2018). It was requested/directed that I attend the Adelaide office. I can’t recall exactly, but the request would have come from the CEO, Zita Adut Deng Ngor or Jody Knighton.

19. In examination in chief, the worker gave evidence that she would attend at the Adelaide office approximately once each month. Her evidence was then as follows:

    COUNSEL:And when you did so, how often would [sic] take files from Christies Beach to Adelaide, or vice a versa?

    WITNESS: So there would always be some sort of files taken.

    COUNSEL:[objection taken]

    COUNSEL: … Now who directed you to take files from the offices?

    WITNESS:This particular time or in general?

    COUNSEL:In general.

    WITNESS:It would be my senior solicitor as well as the managing solicitors.

    COUNSEL: You don’t remember the identity of the person on this particular occasion?

    WITNESS:On this particular occasion I don’t recall exactly who it was. But it would have either been the CEO or the managing solicitor. As my managing – as my – the managing solicitor as the senior solicitor was not there at the time.

20. Cross examination was largely limited to the requirement to transport material from one office to another. It was not focused on the files, which was understandable given the approach of counsel for the worker. Relevantly, however, the following exchange took place:

    COUNSEL:… Did it say on your contract of employment that you’re required to do this? To transport things from one office to another in your car.

    WITNESS:That I couldn’t be certain of. But it was a requirement that I had a car.

    COUNSEL:Right. So you can’t point to any particular contractual obligation that you had to transport material from one office to another?

    WITNESS:Not at this point in time. But it was straight away as we were of the understanding, because everyone did it.

    COUNSEL:And you could have said no on occasions? Or could have said, “I can’t fit that in the car.”

    WITNESS:I’m sure that could have been. But it never came as a discussion because it was always about efficiency. We had a nature where we helped each other out. We were a brand new program. That was funding was limited. And it’s just what we did.

21. Relevantly, the trial judge made the following finding:[89]

    On 11 October 2018, Ms Wastell was directed to attend at the Adelaide office for meetings and file reviews. In connection with this she had taken files from the Christies Beach Office, which she had transported home the previous day.

    [89] [2023] SAET 4 at [4].

22. We cannot exclude that it may have been open, on the evidence and this finding of fact, to reason further that the journey home with the files was undertaken in the course of employment. However, that would, in our view, depend on further inferences of fact to be drawn from the evidence.

23. This can be demonstrated by an example. On the files case, the judge only found, as a matter of fact, that the worker was directed to attend at the Adelaide office for a file review, and in that connection, she had taken files with her. We respectfully disagree with Crawley DPJ that the judge found that the worker was ‘directed or instructed by the managing solicitor or CEO to take those files’.[90] We do agree that a finding to that effect, or further findings about the circumstances in which the files came to be transported on this occasion, would have been necessary as part of the amalgam inquiry. However, the evidence on this topic was not clear. Similarly, we respectfully consider that the matters relied on by Eaton DP, [91] quoted above, required further findings of fact as part of the amalgam inquiry before the ultimate conclusion could be drawn.

    [90]   [2023] SAET 69 at [70] (Crawley DPJ).

    [91]   [2023] SAET 69 at [91]-[92].

24. It follows, contrary to the conclusion of Crawley DPJ and Eaton DP, that we are not satisfied that the determination that the worker’s journey was undertaken in the course of employment required no further finding of fact. The failure of the trial judge to refer to the files case at [32]-[33] was not just a failure to draw a final legal conclusion, but to make factual findings as part of the ‘amalgam’ analysis that was necessary with respect to that case.

25. In circumstances where the files were not the focus of the evidence, it is unsurprising that issues relevant to the files question were not explored as thoroughly as they might have been. By this, we mean not only the issues insofar as they might have supported the worker’s case, but also insofar as they might have supported the case for RTWSA.

26. This leads to a difficulty. We have accepted (a) that the files issue was live at trial and (b) that the intervention by the Full Bench as to whether the trial judge addressed that issue adequately did not, in all the circumstances, deny RTWSA procedural fairness. It follows that the worker should have an opportunity to have the files case determined. However, the evidence relevant to the files case was not comprehensively adduced or, consequently and understandably, interrogated. Simply to remit the matter to the trial judge to make further findings on the evidence already adduced would potentially occasion unfairness to RTWSA.

27. We accept that remitting the matter to the trial judge to hear any further evidence and to make findings on the files case effectively gives the worker a second chance at trial on a limb of her case that was not comprehensively prosecuted. However, given the approach taken by the Full Bench in raising the question of the judge’s treatment of the files case, we can see no other course that would accord substantive justice to both the worker and RTWSA.

28. As identified above, the question effectively raised by Ground 3 is:

    Whether, on the facts as fully found by the trial judge, the only conclusion reasonably open was that Ms Wastell’s journey was undertaken in the course of carrying out her duties of employment within the meaning of s 7(8)(a) of the RTWA.

29. We would answer that question, ‘no’. It follows that we would order that the application for review, at least insofar as it concerns the ‘files’ case prosecuted by the worker, be remitted to the trial judge for further hearing, including evidence, and determination. This conclusion is subject to consideration of the worker’s Notice of Alternative Contention.

    The Notice of Alternative Contention

30. The worker filed a Notice of Alternative Contention contending that the decision of the Full Bench was capable of being supported ‘in whole or in part’ on the following grounds:

    1.The Full Bench ought to have found that the primary judge erred in law on the basis that on the facts as found, in transporting the two boxes of office items to the Christies Beach office:

    a.     it followed that the respondent was performing an instruction given to her by her employer in the exercise of control as employer, which in turn required the conclusion that the journey was undertaken in the course of carrying out duties of employment (and/or the primary judge’s conclusion to the contrary was not reasonably available); or

    b.    alternatively, the primary judge erred in failing to resolve whether the request was a relevant instruction, and the reasons were inadequate.

    2.If, contrary to the Full Bench’s reasoning, the primary judge’s reference to goods and boxes in paragraphs 32 and 33 of the primary judgment included a reference to the legal files, the Full Bench ought to have found that on the basis of the facts as found:

    a.     it followed that the worker was instructed to transport those items to the Christies Beach office, which, alone or in combination with the employer’s instruction to convey the office files, required the conclusion that the journey was undertaken in the course of carrying out duties of employment (and/or the primary judge’s conclusion to the contrary was not reasonably available); or

    b.    alternatively, the primary judge erred in failing to resolve whether there was a relevant instruction, and the reasons were inadequate.

    3.The Full Bench ought to have found that the primary judge erred in law in bringing to bear considerations at PJ [33] which could not on the proper construction of s 7(8)(a) negate a finding that the journey was undertaken in the course of carrying out duties of employment (if it were otherwise found that in conveying the files or the office items the respondent was performing an instruction or doing something reasonably incidental to her work or performance of such an instruction.)

31. Given that we would not construe the trial judge’s reference to goods and boxes in paragraphs 32 and 33 of the primary judgment as including a reference to the legal files, Alternative Contention 2 does not arise.

32. As to Alternative Contention 1, the worker gave evidence about the boxes in her affidavit in the following terms:

    Any time I attended at the city office, I was be [sic] asked to collect items for the Christies Beach office. On this occasion, I picked up two boxes containing computer equipment and pamphlets to take to the office.

33. The worker was asked during examination in chief to clarify this statement. The following exchange then occurred:

    WITNESS:So in general to make proficiency any time I would go between the city office and the Christies Beach office. We would either be directed, “You need to collect X, Y, and Z while you’re there.” As well as an overall understanding you were to ask the staff in said office, “Do we need anything from the other office?” And you’d take it in your car and drive it back, big or small.

    HIS HONOUR:    What sort of things? Were they files?

    WITNESS:So it could be files, yes. But it would also be any equipment that we need … It could be a variety of different things.

    …

    COUNSEL:Now was this a task that you alone performed? Or are you aware that other workers would do a similar job. Similar transporting of equipment.

    WITNESS:No, I’m aware it was a general understanding within employees.

1. The exchange then turned to the items being transported on the day of the accident. The worker described the various items. The examination in chief then proceeded as follows:

   COUNSEL:And was that request that came from someone at the Christies Beach office or the Adelaide office.

   WITNESS:Both.

   COUNSEL:Do you remember who it was that asked you to do that?

   WITNESS:So some of the larger items were from the Christies Beach office. And some of the, like, the stationery and pamphlets and like the new cards, like business cards and such. Were from the Adelaide office.

   COUNSEL:So – and by larger do you mean the computer equipment?

   WITNESS:Yes.

   COUNSEL:So someone at the Christies Beach office asked you to pick up computer ---

   WITNESS:Yes.

   COUNSEL:---from Adelaide, did they?

   WITNESS:From a discussion that would have been had between the Christies Beach office and the Adelaide office. I happen to be the one driving there. So then I got that secondary information, “Can you pick up.”

2. In cross-examination, counsel for RTWSA asked whether it was a more senior person or the admin staff who had asked her to pick up the goods. The answer and subsequent exchange were as follows:

   WITNESS:Both. So I was asked by – as my senior was away at the time. I have – were communicating at the same time. It was asked to collect some stuff. I was also asked by the – because or admin was shared by the Southern Justice admin. But it was the family advocate who also asked for items. But it was also flipping it. At the Adelaide office I was also asked, “Can you pick up while you’re here?”

   …

   WITNESS:“And take these items down” And that was the managing solicitor in the ---

   COUNSEL:And you were doing that to help people out?

   WITNESS:I was doing that because that was what we always did. If someone travelled between any office. So even it was someone from the Adelaide branch travelling down to the Christies Beach branch. I would be the same notion.

3. The worker went on to confirm that she could have asked someone to bring a file to Christies Beach that she wanted from the Adelaide office. She said she could not be certain if her contract of employment required her to transport things between offices in her car, but she confirmed it was a requirement to have her own car. She confirmed her understanding that this was something to be done, as everyone did it. Then when asked if she could have said ‘no’ on occasion, or if she could have said that something would not fit in her car, she said:

   I’m sure that could have been. But it never came as a discussion because it was always about efficiency. We had a nature where we helped each other out. We were a brand new program. That was funding was limited. And it’s just what we did.

4. Alternative Contention 1.a, that the Full Bench should have found that the worker was instructed to transport the other items to the Christies Beach office, necessarily requires that this could be the only reasonable conclusion available to the Full Bench. The appeal to the Full Bench lay on a question of law only. The finding of the trial judge was that the worker was ‘asked’ to transport the goods to the Christies Beach office.

5. In oral submissions, the worker indicated that the purpose of the contention was not to say that a finding of an instruction was inevitable, but rather that the trial judge did not address the issue and that Crawley DPJ’s analysis ‘doesn’t show it to be underserving of proper consideration’.

6. The starting point, and the evidence of the worker, was that she was ‘asked’ to transport various items between offices. While her evidence as to the general practice included the possibility that ‘we … would be directed’, that was not the effect of her evidence with respect to the relevant occasion. The evidence simply did not rise to the level that this was a part of her duties on this occasion. While the trial judge did not explore all the evidence given on the topic, that evidence was broadly premised on the proposition that the worker’s experience was that she would be ‘asked’ to carry items. The judge’s reasons, while brief, were faithful to that premise.

7. In our view, it was not a necessary conclusion that the worker was directed to carry the boxes as part of her duties of employment. Moreover, given the approach by the parties to this issue at trial, we do not think that the trial judge’s reasons were inadequate in this respect. The judge’s reasons adopted the premise of the worker’s evidence, that she was ‘asked’ to transport the goods.[92] The balance of the evidence on the topic did not raise a case that this amounted to an instruction or direction. The judge’s finding that the worker was ‘asked’ to transport the boxes then formed part of the ‘factual picture as a whole’ that caused the judge to uphold RTWA’s rejection of the claim.[93]

   [92] [2023] SAET 4 at [32].

   [93] [2023] SAET 4 at [34].

8. We dismiss Alternative Contention 1.

9. Alternative Contention 3 is premised on it being ‘otherwise found that in conveying the files or the office items the respondent was performing an instruction or doing something reasonably incidental to her work or performance of such an instruction’. We have found that there is no basis for challenging the contrary conclusion with respect to the boxes. For the reasons given above, it is necessary for the files case to be reconsidered as to whether, in that regard, the worker was performing an instruction or doing something reasonably incidental to her work or performance of an instruction. That being the case, the occasion to consider Alternative Contention 3 does not arise. It is subsumed by (and only by) the need to reconsider the case with respect to the files.

10. We dismiss Alternative Contention 3.

    Conclusion and disposition of the appeal

11. We grant leave to appeal on all grounds raised on the Notice of Appeal. We allow the appeal on Ground 3.1. We dismiss the Notice of Alternative Contention.

12. As indicated above, Calligeros DPJ considered it was appropriate to remit the matter to be heard and determined at large. That requires consideration. The worker’s success before the Full Bench was grounded in the failure of the trial judge to explain the significance, or otherwise, of the evidence of the files and the file review to his conclusion that the worker’s journey was not undertaken in the course of her employment. We have not disturbed the Full Bench’s conclusion in that regard. On the Notice of Alternative Contention, the worker has not demonstrated any basis to disturb the trial judge’s findings of fact with respect to the transport of the boxes.

13. It would not be appropriate, in our view, to allow the worker on a remitted hearing an opportunity, in effect, to adduce further evidence with respect to the ‘boxes’ issue. The worker prosecuted the boxes issue comprehensively. Her success before the Full Bench, to the extent that this success has been maintained on this appeal, was with respect to the ‘files’ issue alone. It depended on her position that the files issue required a factual inquiry distinct from the boxes issue, within the broader contest arising under s 7(8)(a) of the RTWA.

14. The factual inquiry with respect to the boxes issue should be treated as having been concluded.[94] The only possible challenge to that concluded factual inquiry lay on a question of law. None has succeeded. To allow further evidence to be led on that issue on a remittal would, at the least, occasion an injustice to RTWSA. It would effectively allow the worker an opportunity to reopen that concluded factual inquiry.[95] To be clear, the trial judge’s factual finding that ‘WLSSA asked [the worker] to transport goods to its Christies Beach office’ should not be revisited, given our conclusion that this finding related to the boxes only. Neither should any other finding of fact solely relevant to the boxes issue.

    [94]   Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [116].

    [95]   See Pateman v Higgin (1957) 97 CLR 521 at 527 (Kitto J).

15. Having said that, findings of fact with respect to the boxes issue remain relevant to the ultimate issue arising under s 7(8)(a), as the worker was transporting both the boxes and the files on the journey. While any further evidence on remittal should be limited to evidence relevant to the files issue, and the findings of fact on the boxes issue (alone) should be left undisturbed, those findings of fact are still relevant to the ultimate issue to be determined, in light of all the evidence ultimately before the judge.

16. We therefore order that the application for review be remitted to the trial judge for further hearing and determination. The remitted hearing is not to reconsider any finding of fact already made that is solely relevant to the worker’s transport of the boxes, as distinct from her carriage of the files. Any further evidence to be adduced is to be restricted by its relevance to the topic of the worker’s attendance at the file review at the Adelaide office on 11 October 2018 and her carriage of files for that purpose.